Pragmatic anti-oppression academics and legal theorists have long argued for equality under the law. The law should not discriminate on the basis of physical markers—it should be neutral as to what sorts of bodies come before it. However, such neutrality is not always on the side of justice; it can aid and reinforce systems of oppression. This is particularly true of the international legal principle of non-refoulement (PNR), which prohibits states from returning asylum-seekers back to states or territories where there is a risk that their lives and/or freedoms will be threatened on account of their race, religion, nationality, membership in a particular social group, or political opinion. States are (legally) obliged to rescue asylum-seekers who will be persecuted if they are returned to their home states or territories. However, as enforced, the PNR systematically denies that right to certain groups, particularly those who experience gender-based and/or gang-based violence. Exclusionary rulings depict some experiences as the result of indiscriminate and widespread violence, and so render some forms of identity-based violence as too common and unexceptional to meet the standards of persecution embedded in the refugee definition. Thus, the PNR often fails—because of its purported neutrality—to protect women and those with certain bodies.

This situation forces us to interrogate both how bodies and borders interact in international law and how we should think about neutrality and equality. Neutrality has long been the hallmark of the serious academic and legal theorist; but should we continue to hold this line, especially in regards to refugee studies? To what extent, if any, should international law take physical status into account when legislating about refugees, territories, and borders? We first investigate the concept of neutrality as a border surrounding contemporary liberal academic and legal discourse, and then discuss the implications of such neutrality for the intersection of gender research, refugee studies, and international law. We conclude that the legal entanglement of equality and neutrality has become entrenched in the international laws surrounding refugees in a way that is seriously harmful and oppressive to those with unwelcome bodies who flee across international borders.

Jennifer Kling is Assistant Professor of Philosophy at the University of Colorado, Colorado Springs. Her research focuses on moral and political philosophy, particularly issues in war and peace, self- and other-defense, international relations, and feminism. She is the author of articles in Journal of Global Ethics and The Routledge Book of Pacifism and Nonviolence, and is the editor of Pacifism, Politics, and Feminism: Intersections and Innovations (Brill, forthcoming).

Emily Skop is Professor and Chair of the Department of Geography and Environmental Studies at the University of Colorado, Colorado Springs, and is the Founding Director of the UCCS Global Intercultural Research Center. Her research focuses on international migration, urbanization (in particular spatial segregation and inequality), and race, ethnicity and place. She is the author of numerous articles and book chapters on these topics, and received the 2018 Distinguished Scholar Award in Ethnic Geography from the American Association of Geographers (AAG).

Jennifer Kling, PhD
Assistant Professor of Philosophy
University of Colorado, Colorado Springs
jkling@uccs.edu

Emily Skop, PhD
Professor and Chair
Geography and Environmental Studies
Founding Director of the UCCS Global Intercultural Research Center (GlInt)
University of Colorado, Colorado Springs
eskop@uccs.edu

This is a co-authored paper.